Shawl Property v Malone

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Allen
Judgment Date01 October 2019
Neutral Citation[2019] IEHC 649
Docket Number[2019 No. 771 P.]
Date01 October 2019

[2019] IEHC 649

THE HIGH COURT

Allen

[2019 No. 771 P.]

BETWEEN
SHAWL PROPERTY INVESTMENTS LIMITED
PLAINTIFF
AND
A.

AND

B.
DEFENDANTS

Permanent injunctions – Trespass – Properties – Plaintiff seeking permanent injunctions restraining trespass – Whether the defendants have any estate, right, title or interest in the properties

Facts: In 2005 the first defendant borrowed a little over €8 million to fund the purchase of a portfolio of eight residential properties in south Dublin, among them houses at Blackacre and Whiteacre. The first defendant failed to meet his obligations to the lender and in 2018, following an assignment of the loan and security, the two houses were sold to the plaintiff, Shawl Property Investments Ltd. In the meantime, the first defendant had been adjudicated bankrupt, and later discharged. About three months after the sale of the houses to the plaintiff, the first defendant broke in to them and changed the locks and he claimed that they were his and/or that they belonged to his former life partner and the mother of his teenage children, and/or both. The defendants delivered a counterclaim by which they claimed a declaration that the two houses, which neither of them paid for, but which the plaintiff did pay for, were theirs. The essential issue on this application was whether the defendants were entitled to insist that the plaintiff’s action for permanent injunctions restraining trespass must go to trial on oral evidence.

Held by the High Court (Allen J) that, having applied the test laid down in Abbey International Finance Ltd v Point Ireland Helicopters Ltd and Elitaliana SpA [2012] IEHC 374, the defendants did not have an arguable defence. The only disputed fact was whether at the time of the conveyances to the plaintiff Beltany Property Finance DAC was in possession; Allen J took the defendants’ case at its high-water mark but if Beltany was not in possession that did not invalidate the sales. Allen J held that there was no issue of fact or nuanced question of law such as would warrant a trial of this action. Allen J held that it was very clear that the defendants had no defence and that there would be a declaration that they do not, nor do either of them, have any estate, right, title or interest in either of the properties; in addition, there would be a permanent injunction restraining the defendants, their servants and agents and all other persons with notice of the making of the order from trespassing or entering upon or otherwise interfering with the properties. Allen J held that he would hear counsel as to what ancillary orders were appropriate.

Allen J held that, having applied to the counterclaim the principles enunciated by Clarke J in Lopes v Minister for Justice [2014] IESC 21, even on the basis of the facts as pleaded, the counterclaim disclosed no reasonable cause of action, was frivolous and vexatious and should be dismissed under O. 19, r. 28.

Application granted and counterclaim dismissed.

JUDGMENT of Mr. Justice Allen delivered on the 1st day of October, 2019
Overview
1

In 2005 the first defendant borrowed a little over €8 million to fund the purchase of a portfolio of eight residential properties in south Dublin, among them houses at [Blackacre], and [Whiteacre]. The first defendant failed to meet his obligations to the lender and in 2018, following an assignment of the loan and security, the two houses were sold to the plaintiff. In the meantime, the first defendant had been adjudicated bankrupt, and later discharged.

2

About three months after the sale of the houses to the plaintiff, the first defendant broke in to them and changed the locks and he now claims that they are his and/or that they belong to his former life partner and the mother of his teenage children, and/or both. The defendants have delivered a counterclaim by which they claim a declaration that the two houses, which neither of them paid for, but which the plaintiff did pay for, are theirs.

3

The essential issue on this application is whether the defendants are entitled to insist that the plaintiff's action for permanent injunctions restraining trespass must go to trial on oral evidence.

The facts
4

There is little dispute as to the facts. I will identify later such dispute as there is and deal with the materiality of the disputed facts.

5

By letter of loan offer dated 20th October, 2005, EBS Building Society (“BBS”) offered to advance to the first defendant a loan of up to €8,318,000, over 25 years, to fund the acquisition by the first defendant of a portfolio of eight residential investment properties in south Dublin. The first defendant accepted the offer on 16th November, 2005 and drew down the loan on 13th December, 2005.

6

The loan was offered, accepted and drawn down upon terms that EBS would have a first legal mortgage over each of the eight properties. On 6th January, 2006, the first defendant executed a deed of mortgage and charge over several properties, including that at [Blackacre], and on 10th January, 2006, he executed a deed of mortgage and charge over the house at [Whiteacre].

7

When the property market turned, the first defendant was unable to meet his obligations and on 29th October, 2009, the High Court (Dunne J.) made an order for possession of all the properties in favour of EBS.

8

EBS did not execute the order for possession but instead, on 26th May, 2010, appointed Mr. Paul McCann as receiver over the properties.

9

On 9th September, 2013 EBS marked judgment in the Central Office against the first defendant in the sum of €9,433,173.79.

10

By deed of conveyance and assignment dated 30th June, 2017, EBS DAC (as it by then had become) transferred the first defendant's loan and the security held for it to Beltany Property Finance DAC ( “Beltany”). On 10th September, 2018, Beltany, in exercise of the power of sale contained in the mortgages, sold the properties at [Blackacre] and [Whiteacre] to the plaintiff. The assurances to the plaintiff were duly registered in the Registry of Deeds.

11

In the meantime, there had been a protracted battle between Mr. McCann and the defendants. Between the time of his appointment on 26th May, 2010, and about March, 2014 the conduct of the receivership was unremarkable. Mr. McCann was managing the properties and collecting the rents. However, when, in March 2014, Mr. McCann offered the properties for sale, the defendants tried to recover possession of all eight properties and to collect the rents from the tenants.

12

By plenary summons issued on 29th April, 2014, Mr. McCann commenced proceedings against the defendants and “Anti-Eviction Taskforce” claiming orders requiring the defendants to vacate the premises the subject of these proceedings, and restraining the defendants from entering upon or attending at, or otherwise interfering with the receivership in respect of the other six properties in the portfolio, as well as the properties the subject of these proceedings.

13

By order made on 15th May, 2015 (for the reasons given in a comprehensive written judgment delivered on 27th April, 2015) the High Court (Donnelly J.) granted the relief sought by Mr. McCann and dismissed a counterclaim by the second defendant. An appeal by the second defendant against the order of 15th May, 2015, was dismissed by the Court of Appeal on 9th February, 2017. An application by the first defendant to the Court of Appeal for an extension of time in which to file a notice of appeal against the judgment and order of 15th May, 2015, was withdrawn on 20th March, 2017.

14

Although the challenges to the order of the High Court of 15th May, 2015, had been disposed of by the Court of Appeal, the defendants did not obey it and by order of the High Court (Baker J.) made on 4th May, 2018, the first defendant was attached, and the second defendant was committed to Mountjoy Prison.

15

The second defendant appealed against the order of 4th May, 2018. On 17th May, 2018, the Court of Appeal refused an application for a stay on the High Court order pending appeal but expedited the hearing of the appeal, which it heard on 29th May, 2018. For the reasons given in a comprehensive written judgment delivered by Peart J. on 21st June, 2018, the second defendant's appeal was dismissed.

16

The receiver's motion to attach and commit was listed for further consideration before the High Court (Baker J.) on 19th July, 2018, and was adjourned to 9th October, 2018, with liberty to the parties to apply, including during the long vacation, on 48 hours’ notice or on such shorter notice as might be permitted by a judge of the High Court.

17

On 27th August, 2018, the second defendant gave notice that she wished to purge her contempt and her application was dealt with by the High Court (Quinn J.) on the following day. The second defendant undertook to the court to vacate the premises and not to interfere directly or indirectly with them and was discharged from custody.

18

The second defendant's belated compliance with the order of 15th May, 2015, cleared the way for the sale of the properties and they were, as I have said, sold to the plaintiff on 10th September, 2018.

19

Along the way, the first defendant was adjudicated bankrupt on 4th April, 2017, and discharged from bankruptcy on 4th April, 2018.

20

The plaintiff went into possession of both properties on 11th September, 2018.

21

Late in the morning of 2nd December, 2018, a group of five men and one woman broke into the house at [Blackacre] and changed the locks. The woman claimed to be the owner of the house by virtue of a purported transfer to her by The [X] Family Trust, for the benefit of the first defendant's teenage daughters. The intruders were on that occasion put out by the Gardaí.

22

At about the same time on the same day, a group of about eight men led by the first defendant broke into the house at [Whiteacre]. Later that afternoon, the...

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2 cases
  • Pola Logistics Ltd v GTLK Europe DAC
    • Ireland
    • High Court
    • 25 August 2022
    ...transferred to the commercial list. Counsel also referred to the decision of Allen J in Shawl Property Investments Limited v. A & B [2019] IEHC 649, in which the court applied the test set out by Kelly J in the Abbey International Finance case and found that the defendants did not have an a......
  • McArdle v Carroll
    • Ireland
    • High Court
    • 3 December 2019
    ...of the proceedings. 34 The court has been referred to a number of authorities including the decision of Simons J. in Tanager DAC v. Ryan [2019] IEHC 649 as authority for the proposition that account is to be taken of factors such as:- “whether the proceedings were seeking a private personal......

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